Madras High Court
C.Venkatesh vs The Inspector Of Police on 1 March, 2012
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/03/2012 CORAM THE HONOURABLE MR. JUSTICE N.PAULVASANTHAKUMAR and THE HONOURABLE MR. JUSTICE P.DEVADASS Crl.A.(MD)No.1063 of 2003 and M.P.(MD)No.5449 of 2005 C.Venkatesh ... Appellant Vs. The Inspector of Police, Munneerpallam Police Station, Munneerpallam, Tirunelveli District. Crime No.203 of 2001 ... Respondent PRAYER The Appeal is filed under Section 374 of the Code of Criminal Procedure, against the conviction and sentence passed by the learned Additional Sessions Judge, (Fast Track Court No.II), Tirunelveli in S.C.No.314 of 2002, on 31.01.2003, sentencing the appellant to life imprisonment with fine Rs.1,000/- in default one year R.I for offence under Section 302 read with 34 IPC, 3 years R.I with the fine Rs.1,000/- in default 6 months R.I offence under Section 201 IPC and 3 years R.I for offence under Section 379 IPC. !For Appellant ... Mr.A.Thiruvadi Kumar ^For Respondent ... Mr.K.S.Durai Pandian Additional Public Prosecutor - - - - - - :JUDGMENT
1. A.1 Venkatesan and A.2 Kumar @ Sivakumar were prosecuted in S.C.No.314 of 2002, before the learned Additional Sessions Judge (Fast Track Court No.II), Tirunelveli, for conspiracy under Section 120-B IPC, for raping one Lakshmi under Section 376 IPC, for killing her under Section 302 r/w. 34 IPC, for stealing her properties under Section 379 IPC, for criminally intimidated her under Section 506 (i) IPC and for causing disappearance of evidence under Section 201 IPC.
2. They were acquitted from the charges under Sections 120 B, 376 and 506
(i) IPC.
3. They were found guilty and sentenced as under:-
ACCUSED SECTION OF LAW PUNISHMENT
A.1 302 r/w. 34 Life imprisonment, fine Rs.1,000/- in default
one year rigorous imprisonment
201 IPC Three years rigorous imprisonment and fine
Rs.1,000/- in default 6 months
rigorous imprisonment
379 IPC Three years rigorous imprisonment and fine
Rs.1,000/- in default six months
rigorous imprisonment
A.2 302 r/w. 34 Life imprisonment,
fine Rs.1,000/- in default one year
rigorous imprisonment
201 IPC Three years rigorous imprisonment and fine
Rs.1,000/- in default 6 months
rigorous imprisonment
379 IPC Three years rigorous imprisonment and fine
Rs.1,000/- in default six months
rigorous imprisonment
4. After judgment, A.2 had passed away. Now, A.1 appealed against the said judgment.
5. The case of the prosecution as set out in the prosecution evidence in the trial Court may briefly be stated as under:-
(i). Lakshmi @ Nalini is daughter of P.Ws.1 and 8 Chinnaiya and Chellam.
P.W.1's brother is Narayanasamy and Lakshmi's brother is P.W.7 Shanmugababu. They are residing in Malligai Nagar in Seranmahadevi in Tirunelveli District. Lakshmi is an LIC agent. She is unmarried. She used to leave the house around 9 a.m., and return by 6 p.m.
(ii). On 1.8.2001, at about 8.30 a.m., in their house, P.W.7 received a telephone call from A.1, A.1 told him that he has to pay LIC money to Lakshmi, so, he wanted to talk to her. P.W.7 gave the telephone to her.
(iii). Around 9.30 a.m., Lakshmi told her father that she is going to Melaseval. P.W.7 boarded her in P.W.10 Arumuganainar's van to Palayamkottai. At about 12.30 noon, near a tree, in Achankulam, P.W.17 Vasan, a fish vendor, seen A.1 and A.2 talking to a lady aged about 22 years, wearing a sandal colour churidhar.
(iv). Around 7.30 p.m., P.W.20 Krishnasamy, a resident of Malligai Nagar, boarded a Papanasam bound bus. A.1 and A.2 also boarded the same bus. P.W.20 alighted at Cheranmahadevi. A.1 and A.2 continued their journey.
(v). Till night, Lakshmi did not return home. P.Ws.1, 2, 7 and the relatives searched for her in vain.
(vi). On 15.8.2011, around 2 p.m., P.W.3 Chandran phoned P.W.1 that in P.W.22 Sethuamalinga Asari's pump set well, a woman's dead body is floating. Around 2.30 p.m., P.W.5 Murugan, Head Constable, Special Branch received phone call that in a well in Melaseval, a dead body was floating. He informed P.W.6 Chandrapal, Fire Officer, Cheranmahadevi. With the assistance of P.W.21 Ramaiya, the dead body was took out. P.Ws.1 to 3, 7 and 8 identified it as of Lakshmi. A big stone and her duppatta were tied around her.
(vii). At about 4 p.m., at Muneerpallam Police Station, P.W.1 gave Ex.P.1 complaint to P.W.30 Dharmaraj, Sub-Inspector. He registered a case of suspicious death in Crime No.203 of 2001 under Section 174 Cr.P.C. He Sent Ex.P.20 Express FIR through P.W.32 Arumuga Nainar, Head Constable to Judicial Magistrate No.VI, Tirunelveli.
(viii). P.W.34 Muthukrishnan, Inspector, Muneerpallam, took up his investigation. Visited the spot. In the presence of P.W.26 Murugan and Chandrasekar, prepared Ex.P.2 observation mahazar. Drew Ex.P.24 rough sketch. From the Motor Engine Room, bangle pieces (M.O.10) were recovered. In the presence of Panchayatdars, P.W.34 conducted inquest over the dead body (Ex.P.25 inquest report). He sent the dead body with his requisition to Government Hospital, Tirunelveli through P.W.33 Head Constable Robinson for conducting autopsy. P.W.34 examined the material witnesses and recorded their statement.
(ix). On 16.8.2001, at about 11.30 a.m., P.W.28 Dr.Selvaraj conducted post mortem on the dead body of Lakshmi and found the following.
Body was decomposed. It is a female body. Both the hands are placed over the abdomen and tied with a thupatta. A coir is tied to hands. One end of the coir encircles the chest, abdomen, back and passes downwards.
6 cm wide transverse pale zone seen underlying soft tissues were hard and compressed and pale. The lower border of the ligature mark is 8 cm above the suprasternal notch, close to the right and left mastoid regions and merges with the hairline on the back. Fracture of hyoid bone, inwards on both sides. Cartilage is contused and fractured. Labia majora seen lying close to each other.
(x). P.W.28 opined that the deceased would appear to have died of strangulation of neck.
(xi). On 18.8.2001, at about 10 a.m., in Vanniyakulam, in front of one Kanagasabai's house, P.W.34 arrested A.1. In the presence of P.W.26 Murugan and Madasamy, Village Assistants, Melaseval, A.1 gave him Ex.P.9 confessional statement. In pursuance of that, the accused handed over his lungi, Shirt and trouser (M.Os.18 to 20). In the circumstances, P.W.34 altered the Section of law to Sections 376, 302 and 379 IPC and submitted Ex.P.26 alteration memo to the Court. From a bush near the bridge on the Melaseval - Vaniyankulam road, A.1 produced ladies money-purse (M.O.7). P.W.34 seized it.
(xii). A.1 took them to one Muthukannan's cycle shop in third street, Pranjeri and shown a bi-cycle brought by A.2. P.W.34 produced A.1 to the Court for judicial custody. He produced the case-properties to the Court.
(xiii). On 21.8.2001, at about 3 p.m., near the Pranjeri bus-stop, P.W.34 arrested A.2, in the presence of P.W.27 Petchi and Sekar. P.W.34 recorded Ex.P.9 confessional statement of A.2. A.2 produced his Shirt, Lungi, jatty (M.Os.12 to 14) and a pair of silver anklet (M.O.8). P.W.34 seized them under Ex.P.10 mahazar. He produced A.2 to the Court for judicial custody. Produced the case- properties to the Court. P.W.34 gave Exs.P.28 and P.29 letters to the Court to conduct potential test for A.1 and A.2. They were found to be capable of performing sexual act. Concluding his investigation, P.W.34 filed the Final Report.
6. As against A.1 and A.2, charges under Sections 120 B, 376, 302 r/w. 34 IPC, 379, 506 (i) and 201 IPC were framed.
7. To substantiate the charges, prosecution examined P.Ws.1 to 34, marked Exs.P.1 to P.31 and exhibited M.Os.1 to 20.
8. On the incriminating aspects in the prosecution evidence, the trial Court examined A.1 and A.2. They have denied their complicity in this case. They did not let in any evidence.
9. Appreciating the above evidence and the submissions of both sides, the trial Court came to the conclusion that the charges under Sections 120 B, 376, 506 (i) IPC were not established. However, the charges under Sections 302 r/w. 34 IPC, 379 and 201 IPC have been established. For the proved charges, A.1 and A.2 were sentenced as already stated.
10. After the said judgment, but before filing the appeal, A.2 passed away. Now, the remaining accused A.1 had appealed.
11. According to Mr.A.Thiruvadi Kumar, learned counsel for the appellant, this case is based on circumstantial evidence. However, none of the circumstance has been established. They do not form a complete chain. It is found broken everywhere. Now, prosecution case mainly rests on the evidence of P.W.17. The last seen theory projected through him has not been established. The hope of prosecution is the evidence of P.W.7 Babu, who is brother of the deceased. But, his evidence does not deserve any credence. Section 27 Evidence Act recovery is stage managed. The motive attributed is not established.
12.In support of his submissions the learned counsel for the appellant cited the following rulings.
(i) 2010(3) SCC (Cri.) 1179 (Babu Vs. State of Kerala),
(ii)2006(3) SCC (Cri.) 512 (Ramreddy Rajesh Khanna Reddy Vs. State of A.P.),
(iii)2008(3) SCC (Cri.) 246 (Hatti Singh Vs. State of Hariyana) and
(iv)2011(3) SCC (Cri.) (SK.Yusuf Vs. State of West Bengal).
13.On the other hand, the learned Additional Public Prosecutor contended that the evidence of P.W.17 and the Section 27 Evidence Act recovery clearly nails the accused with this case.
14.We have considered the rival submissions, perused the evidence on record, trial Court's findings and also gone through the citations.
15.Deceased Lakshmi, unmarried, is daughter of P.Ws.1 and 8, Chinniah and Chellam P.W.7 Shanmuga Babu, is her brother. They are residing in Malligai Nagar in Cheranmahadevi in Tirunelveli District.
16.Lakshmi is an LIC agent. She used to leave her house around 9 a.m. and return home around 6 p.m. On 01.08.2001, at about 9.30 a.m., she had left the house. But, the whole day she did not return. P.Ws.1, 7, 8 and P.W.2 searched her in vain.
17.P.W.3 Chandran, on 15.08.2001, around 2 p.m., informed P.W.1 that a female dead body is found in the well of P.W.22 Sethuramalingam. P.Ws.1, 2 and 7 and 8 have identified that the dead body is of Lakshmi.
18. P.W.1 lodged the complaint. Initially, a case of suspicious death under Section 174 Cr.P.C. was registered. Later, on 18.08.2001, after the arrest of the accused, the Investigation Officer altered the section of law and thereafter, it has become a case of murder for gain.
19. From the evidence of P.W.26 Dr.Selvaraj, the autopsy doctor, it is clear that Lakshmi suffered unnatural death. She was tied with her thupata (M.O.2). There was fracture of Hyoid bone. She died of homicidal death.
20.According to prosecution, A1 and A2 took her to a secluded motor pumpset, raped her, killed her, stolen her money-purse and silver anklets and to cause disappearance of evidence, thrown her dead body into a well.
21.There is no eye-witness in this case. This case is based on circumstantial evidence.
22.In Padala Veera Reddy v. State of A.P. (AIR 1990 SC - 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
23.In SK.YUSUF Vs. STATE OF WEST BENGAL (2011) 3 SCC (Cri) 620, on the aspect of circumstantial evidence, Hon'ble Apex Court observed as under:-
"32. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the Court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that the act must have been done by the accused."
24. In Navarasu murder case, [INSPECTOR OF POLICE, TAMIL NADU Vs. JOHN DAVID [2011 (3) CTC 104], the Hon'ble Apex Court laid down the following guidelines in considering the circumstantial evidence.
"19. The principle for basing a conviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the Accused and that no other hypothesis against the guilt is possible."
25. To implicate the accused, now, prosecution relies on the following circumstances.
(i)Motive.
(ii)Phone call from A1.
(iii)Last seen theory.
(iv)Post occurrence circumstance.
(v)Medical evidence.
(vi)Section 27 Evidence Act recovery.
26.Now let us proceed to see circumstances one by one. Let us see whether they are established and whether they form a complete chain unerringly proceeding towards the conclusion that the accused is responsible for her death.
27.Motive is irrelevant in a case based on the evidence of eye witnesses. But, it assumes importance in a case based on circumstantial evidence, as it will lend assurance to the quality, reliability and acceptability of the evidence of witnesses examined to prove the circumstances. (See J.Xavier Raj Vs. State by Inspector of Police, Dindugul Taluk Police Station 2012(1) TLNJ 51 Crl.)
28.In this case, the motive attributed against the accused is that A1 indulged in unauthorised selling of diamonds, deceased Lakshmi came to know about it, to hide it, she demanded Rs.5000/- from A.1, on account of that, A1 entertained grouse against her, this had motivated him to kill her and A2 is his associate.
29. To establish this, prosecution examined P.W.14 Malaisamy. Though in his police statement he had furnished information as to motive, when he was examined in the Court, he had resiled from his previous statement. Thus, this aspect remain unsubstantiated.
30. In 2012 (1) SCC (Cri.) 616 VARUN CHAUDHARY Vs. STATE OF RAJASTHAN, the Hon'ble Apex Court held that in cases where there is no eye witness the prosecution should establish that there was motive behind the commission of offence.
31. In 2010(3) SCC (Cri.) 1179 (Babu Vs. State of Kerala) the Hon'ble Apex Court held that in a case based on circumstantial evidence, when motive is not established, it will be a factor in favour of the accused.
32. Thus, one of the link in the chain of circumstances projected by the projection is not established.
33. Now we will go to the next circumstance. It is stated by the prosecution that on 01.08.2001, at about 9.30 a.m., there was phone call from A1 to the house of the deceased, which was picked up by P.W.7 Shanmuga Babu, brother of the deceased, the message is that A1 invited Lakshmi to Prancheri to receive the L.I.C. money. On this aspect, prosecution examined P.Ws.11, 12 and 7 and 8.
34. P.Ws.11 and 12 Umar and Mariam run a STD Booth in Gopalasamuthiram. Prosecution version is from this Booth A1 had telephoned to the deceased. During the trial, P.Ws.11 and 12 went back from their police statements. P.W.7 had elaborated his picking of phone call and also the content of the phone message. P.W.34 Muthukrishnan, Inspector, in his cross examination admitted that P.W.7 did not say so in his police statement. So, it is a statement made by P.W.7 for the first time in Court. P.W8 Chellam's evidence is also like that.
35. Further, the call details of the said STD booth and the residential telephone of the deceased were not produced. Even, if they were produced, it may show that at such time two land lines were connected. But, it will not reveal the contents of the telephonic message. So, this circumstance also has not been established.
36.Now we will go to the next circumstance. It is stated by the prosecution that in pursuance of the telephonic message from A1 Lakshmi went to the bus stand in Cheranmahadevi and P.W7 seen her off at the bus stand. That was the time that he had seen her alive lastly.
37. Lakshmi boarded the van driven by P.W.10 Arumuga Nainar, who left her at Prancheri bus stand. His evidence is that on 01.08.2001, at about 9.30 a.m., she had travelled in his van and she alighted at Prancheri bus stand. P.W.10 had admitted that he had never seen her before. She was a total stranger to him till she travelled in the van. P.W.10 also states that at the Prancheri bus stop he did not spot the accused. He did not say that she went along with the accused.
38. So, P.W.7 knows A1. On 01.08.2001 itself he knows that A1 is the person, who had called her over phone, thereafter, only she went out of their house. But, till 18.08.2001, P.W.7 did not implicate A1 in this case. Even P.W.7 father in his Ex.P.1 complaint, which was given on 15.08.2011 did not mention the name of A1, nor the recipient of the alleged telephone cell from A1 to his son and to his daughter. So, one more circumstance is not proved.
39.Prosecution relies on last seen theory. Prosecution version is that on 01.08.2001 noon deceased Lakshmi was seen lastly alive in the company of A1 and A2. In this respect P.Ws.9, 15 and 17 were examined.
40.The principle behind the last seen theory is that the accused and the deceased must be found together. The other principle is that the time gap between two points, viz., the time at which the deceased was seen in the company of the accused and the time at which the dead body of the deceased was seen must be very short. If it is long, possibility of some other person could have caused the death, could not be ruled out.
41. In RAMREDDY RAJESH KHANNA REDDY Vs. STATE OF A.P. (2006) 3 SCC (Cri) 512, Hon'ble Supreme Court observed as under:-
"The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."
42.The said view has been reiterated by the Hon'ble Supreme Court in SK.YUSUF Vs. STATE OF WEST BENGAL {(2011) 3 SCC (Cri) 620} also.
43. The principle of last seen alive has been adopted in INSPECTOR OF POLICE, TAMIL NADU Vs. JOHN DAVID {2011 (3) CTC 104} also.
44.P.Ws.9 and 15 Vaiyapuri and Kandasamy not supported the prosecution. P.W.17 Vasan had stated that on 01.08.2001, about 12.30 p.m., in Achankulam, beneath a tree he had seen A1, A2 and the deceased were talking together.
45.P.W.17 belongs to Padalayarkulam. He is selling fish in the surrounding villages. He was categorical in his chief examination that he had seen A1 and A2 together with the deceased.
46. It is seen that before that Lakshmi was a total stranger to him. The accused were also almost a stranger to him. But, no Test Identification Parade was conducted. Further, even as per the prosecution version, the accused were so seen on 01.08.2001 but the dead body was found on 15.08.2001. So, there is vast time gap.
47.As per his evidence, P.W.17 had seen the trio on 01.08.2001, at about 12.30 p.m. His statement to police was recorded on 18.08.2001. It was sent to Court only on 06.09.2001.
48.Though late submission of statements recorded under Section 161 Cr.P.C. to the Court by itself will not weaken the evidence of prosecution witness, but, in certain circumstances, in view of the strategic importance of the witness in the prosecution case, it may tell upon the credibility of the prosecution witness. In this case, through P.W.17, prosecution relies an important link in the chain of circumstance. As regards last seen theory, P.W.17 is a star witness.
49.In fact, P.W.17 has become main hope of prosecution. His statement was recorded on 18.08.2001. But, I.O. kept it tightly in his case diary till 06.09.2001. In the circumstances, the submission of the defence that he is a coach up witness, manufactured long after the finding of the dead body to suit the convenience of the prosecution cannot be rejected. So, the last seen theory projected also failed.
50.The next incriminating circumstance relied on is some post occurrence event. It is stated by the prosecution that after the occurrence, A1 and A2 have travelled in a bus. To establish this, P.Ws.18 to 20 were examined.
51.P.Ws.18 and 19 Ramakrishnan and Duraipandi turned hostile. It is the evidence of P.W.20 Krishnasamy that on 01.08.2001 at about 7.30 p.m., at Melacheval, he had boarded a Papanasam bound bus and A1 and A2 have also boarded the same bus at Cheranmahadevi, P.W.20 had alighted from the bus, however, A1 and A2 continued their journey.
52. P.W.20 is a close relative of the deceased. P.W.20 did not say that in the bus A1 and A2 were seen in an unusual manner. It may be that they might have travelled in the bus as passengers. They so travelling in the bus will not be an incriminating circumstance.
53.The other circumstance is medical evidence. On 16.08.2001, at about 11.30 a.m., P.W.28 Dr.Selvaraj conducted postmortem on the dead body of Lakshmi. Ex.P.12 is postmortem certificate. There was no evidence of rape having been committed on her. There is no acceptable evidence to link the accused to show that they have ravished her. That is how in the trial Court itself they were acquitted from the charge under Section 376 I.P.C.
54.The last circumstance relied on by the prosecution is certain Section 27 Evidence Act recovery. On this aspect, P.W.26, Murugan, V.A.O's Assistant, Melacheval and P.W.34 Muthukrishnan, Investigation Officer have been examined.
55.Through the evidence of P.Ws.26 and 34, it is stated that after the arrest of A1 on 18.08.2001, based on his disclosure statement, Ex.P.8 a lady's money-purse (M.O.7), a pair of silver anklets (M.O.8) were recovered. They were identified to be of their daughter by P.Ws.1 and 8. By their nature, these items are freely available. The other material objects are lady's chappal (M.O.6), Bricks (M.O.11) and a polythene bag (M.O.10). Thus, in the circumstances, it is highly doubtful that these material objects were recovered in the manner projected by the prosecution. They appear to be stage managed.
56. In MUSTKEEM ALIAS SIRAJUDDEN vs. STATE OF RAJASTHAN [(2011) 3 SCC (Cri) 473], with reference to Section 27 of Indian Evidence Act, Hon'ble Apex Court observed as under:-
"25. With regard to Section 27 of the Act, what is important is discovery of the materials object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the materials object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
57. The necessary corollary is suspicion, however, strong may not take the place of legal proof. A finding of a Criminal Court is acceptable only when it is supported by legal and valid evidence. Dehors that, it deserves rejection lock, stock and barrel.
58. It is appropriate here to note the following observations of Hon'ble Supreme Court made in, Rathinam v. State of T.N., (2011) 11 SCC 140, at page 145 :
"We must, however, understand that a particularly foul crime imposes a greater caution on the court which must resist the tendency to look beyond the file, ?. It has been emphasised repeatedly by this Court that a dispassionate assessment of the evidence must be made and that the Court must not be swayed by the horror of the crime or the character of the accused and that the judgment must not be clouded by the facts of the case. In Kashmira Singh v. State of M.P. it was observed as under: (AIR p.160, para 2) "2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law."
24. Likewise in Ashish Batham v. State of M.P., it was observed thus: (SCC p. 327, para 8) "8. Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
59.No doubt, very serious charges were made against the appellant. We are very serious of they being proved by valid and legal evidence. Suspicion and surmises cannot be substituted for the same. None of the circumstances projected by the prosecution has been proved. Everywhere the chain of circumstances woven by the prosecution is found broken. There is no connecting link. They do not form a complete chain unerringly implicating the accused with the charges framed against the appellant.
60.In view of the foregoings, the findings recorded by the learned Additional Sessions Judge (Fast Track Court No.II), Tirunelveli, cannot be sustained. Appellant is not guilty of the charges framed under section 302 r/w. 34 IPC.
61. Consequently, stealing of money purse and the silver anklet from the dead body and causing disappearance of evidence must also go.
62. Thus, we hold that the charges under Section 302 read with 34, 379 and 201 IPC stand not proved by the prosecution beyond all reasonable doubts. The accused is entitled to be acquitted.
63. In the result, the Criminal Appeal is allowed. The conviction recorded and the sentences awarded by the learned Additional Sessions Judge (Fast Track Court No.II), Tirunelveli in Sessions Case No.314 of 2002 are set aside. The appellant shall be released from jail, if he is no longer required for any other case, proceeding or order. The fine amount, if any paid shall be refunded to the appellant. Consequently, connected M.P.is closed.
To
1.The Additional Sessions Judge, (Fast Track Court No.II), Tirunelvei.
2.Through the Principal Sessions Judge, Tirunelveli.
3.The District Collector, Tirunelveli.
4.The Superintendent of Police, Tirunelveli.
5.The Superintend, Central Prison, Palayamkottai.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
7.The Inspector of Police, Munneerpallam Police Station, Munneerpallam, Tirunelveli District.